Groundwater regulation new conflict in water management

Farmers and Gov. Doug Ducey say they are willing to change their stance against government oversight and regulation to protect the state’s dwindling water supply – and they’re willing to let the largest water users write the rules.

This shift in thinking comes as the Legislature convenes Jan. 13 and lawmakers will likely have to address what to do with a growing demand for water, just one year after they passed the Drought Contingency Plan, which doles out water from the Colorado River. 

Now, the new urgency is managing Arizona’s groundwater. 

In areas in Arizona where groundwater is unregulated, any landowner who can afford it can drill as much and as deep as they wish, take as much water as they want and are not required to report their usage to the state. But their water must be for a “beneficial use,” per statute, which includes agriculture.

But that usage in these areas, which sit outside of areas where groundwater usage is tracked and regulated, known as active management areas, has gone unchecked by the government for decades. Nobody knows exactly how much groundwater is left or how long it will last.

This growing problem is prompting discussion between water stakeholders in the Legislature and in those areas, who are working to ensure there is enough water to grow responsibly and sustainably for generations.

That, coupled with projected shortfalls in the Colorado River and longer, hotter and drier summers, people living in these areas are worried and are asking the government to step in.

The problem has caught the attention of Gov. Doug Ducey, who has cultivated a legacy as the deregulation governor. Ducey said he’s concerned about reports of a dwindling supply in these areas and is willing to approve regulations water users in these places want.

“I am open minded to regulations that protect and steward our water future,” Ducey said. “I’m concerned about some of the reports that we have received, and we’re working to provide the best possible policy going forward, both from the Arizona Department of Water Resources and the Bureau of Reclamation, and some of the decisions that they make on behalf of the state water management future.”

Ducey said late last year that “positive growth” in areas bring challenges to allocating water responsibly and that the situation is nuanced and Arizona’s water feeds agricultural products that ship around the world.

“Agriculture is a big industry,” Ducey said. “We have not only family farms, but we have people that come in with some corporate farming. If those products are exported to the benefit of Arizona, that’s one thing – water is different.”

His open mindedness takes the form of working closely with the Department of Water Resources and the establishment of the Governor’s Water Augmentation Innovation and Conservation Council following the passage of the Drought Contingency Plan in January 2019.

Through that and through several stakeholder committees organized by the Legislature, Ducey and lawmakers are letting people who use the most water in unregulated counties come up with solutions that work for them. Once those solutions are found, the state is expected to craft laws that will make implementing those processes, which build on long standing water policy, easier.

Enough Water

The state’s 1980 Groundwater Management Act was shepherded by former Gov. Bruce Babbitt and it restricted irrigation on new farmland in urban areas and required builders there to show a 100-year water supply before making new subdivisions, among other efficiency standards. Since its passage, it’s been trumpeted as a historic piece of policy that pushed the state to conserve water where it was growing the most: Phoenix, Prescott, Pinal, Tucson and Santa Cruz management areas.

Areas like La Paz County and Mohave County, which are currently being examined by Legislative committees, weren’t included at the time.

Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University’s Morrison Institute, said that while she thinks there is enough water to go around, the real issue is about where the state is growing. 

She said the state should continue to grow where water supplies allow, like what the Groundwater Management Act intends.

‘Land of the free’

Managing that growth will have to be community-centric, Porter said, as some places might not be able to afford, or might not find feasible, more expensive solutions. Ducey and the Legislature say they are aiming to work with water stakeholders, usually powerful business interests, to hash out the hard work and set precedent for how other areas of the state facing similar problems should move forward.

Ducey said his staff is working with ADWR to find these solutions, which those involved in water stakeholder discussions say will differ by county because none of them use water the same way or take them from the same sources proportionately.

But for now, ADWR’s hands are tied because in order to suggest or implement any new regulation in these areas, it needs to document how much water these megafarms are taking and how much water is left. The department is working to provide a model to committees that study groundwater usage in Mohave and La Paz counties.

Those committees, which include members of local government, mining, farming, business and agriculture stakeholders, are chaired by Rep. Regina Cobb, R-Kingman, and Sen. Sonny Borrelli, R-Lake Havasu city. The groups, which do not include conservationists, plan to meet sometime during the 2020 legislative session to review ADWR’s data and again after the coming legislative session to suggest legislative fixes.

Cobb has said in the past that because these are the interests who use water the most in these communities, they, collectively, have conservation in mind. She characterized the committees as “kind of like DCP for groundwater in each of the communities.”

The committees will consider what residents and water stakeholders in those counties have already asked for: more regulation, expansions of active management areas, other irrigation non-expansion areas and to tax groundwater or to require everyone to meter usage and charge users accordingly.

Cobb said these counties have no real mechanism to regulate water usage and have become a target for hedge fund groups that effectively mine water.

“[Farmers] want to be the land of the free,” Cobb said. “The problem is now they see that by not having any restrictions at all, we have opened ourselves up to vulnerability – we’re vulnerable to all of the water mining companies coming in. So, when they’re looking at that, [farmers are] saying, ‘I want it open for me, but I don’t want it open for everybody.’”

House Minority Leader Charlene Fernandez, D-Yuma, said when she threw out the idea of metering wells at a community meeting “it wasn’t very popular.”

“People who own land believe the water rights belong to the property underneath,” she said.

Complicating any solution politically is the fact that one of the larger operations is using Arizona groundwater to grow hay to ship to Saudi Arabia to feed cattle there. In the meantime, some area residents report that their existing wells have gone dry, forcing them to drill even deeper.

“We have to stand up to that,” said Fernandez who has been one of the key legislative players in shaping Arizona water legislation. She said there should be some way to distinguish between families that live in the area and corporate farmers, “people who don’t have a vested interest in the area.”

“But who makes that decision?” she asked.

Capitol Media Services contributed to this report.